Western Union Tel. Co. v. Heathcoat , 149 Ala. 623 ( 1907 )

DENSON, J. —

The complaint contained two counts, hut the court charged affirmatively in favor of defendant in respect to'the second count. The first count is ex contractu, and claims damages fox» the breach of a contract to deliver a message, which, it is alleged, was given to the defendant in Birmingham, Ala., to be transmitted by electricity to Chattanooga, Tenn., and there to be delivered to the plaintiff.

The general issue was pleaded, and also a special plea numbered 3. The special plea sets up in defense of the action a clause or condition in the contract in these words: “The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within 60 days after the message is filed with*the company for transmission.” It is averred in the plea that no claim for damages was presented in writing within 60 days after said message was filed for transmission. The validity of such a stipulation in contracts of the kind declared on is no longer open to question in this jurisdiction. — Harris v. Western Union Tel. Co., 121 Ala. 519, 25 South. 910, 77 Am. St. Rep. 70. See, also, Hill v. Western Union Tel. Co., 85 Ga. 125, 11 S. E. 874, 21 Am. St. Rep. 166, where the cases are collected.

The'plaintiff’s demurrer to plea 3 having been overruled, she filed two special replications to the plea, numbered 3 and 1. A demurrer was sustained to No. 3 and overruled to No. 1. It will be observed that replication 1 merely states that the defendant, through its agents, waived the terms of the contract requiring, the plaintiff to present her claim in writing Avitbin 60 days. Manifestly this is no moi»e than a. bare conclusion of the pleader. Pleas and replications, to be safe from demurrer, should contain a succinct statement of the facts relied upon as a defense or ansAver to a defense. The facts, then, relied on by the plaintiff as constituting a Avaive-r, shoxxld have been succinctly stated in replication 1, so that.the court could have determined whether or not they constituted a Avaiver. Ground C of the demurrer points out the defect. The demurrer to the replication should have been sustained. — 1 Chitty on Pleading (1855) *603; Torbert v. Wilson, 1 Stew. & P. 200; Owen v. Henderson, 7 Ala. 641; Phoenix Insurance Co. v. Moog, 7 Ala. 301, 56 Am. Rep. 31; T. C., & R. R. Co. v. Herndon, 100 Ala. 451, 14 South. 287; Mabry v. Herndon, 8 Ala. 863; Hardy v. Branch Bank of Montgomery, 15 Ala. 722; Phinney v. Insurance Co., (C. C.) 67 Fed. 493; 18 Ency. of Pl. & Pr. 663.

But the plaintiff (appellee) insists that, if the court erred in overruling the demurrer to the replication, the error worked no injury to the defendant, because, first, she says that the facts proved under replication 4 were the same as those set out in replication 3, and therefore the defendant had notice of the facts that plaintiff intended to rely on. A demurrer having been sustained to replication 3, it was out of the record, and the defendant was not required to look to it for any purpose. Next it is insisted that the defendant was permitted to meet, and did meet, the facts proven under replication 4 by testimony in denial thereof, and therefore that the defendant cannot, upon appeal, complain of the imperfectness of the replication. The answer to this insistence is that, had the demurrer been sustained to the fourth replication, the plaintiff could not have offered evidence of the waiver at all without first amending the replication, and we cannot indulge the presumption that she would have amended it. The cases cited in support of the insistence, and which apply the doctrine of error without injury, Avhere a demurrer to a special plea has been sustained, and the defendant either had or could have had, under the general issue benefit of the matter set up in the special plea, are not applicable. The facts of the case of Payne v. Crawford, 102 Ala, 387, 14 South. 854, prevent it from being authority for plaintiff’s insistence. In that case there were many special replications to the defendant’s special plea. Demurrers to the replications Avere overruled. The court held that the fourth replication set up a good reply, that the reply made by the sixth and tenth replications was not good, but the demurrer to them, being general, was properly overruled; also that the evidence offered was competent and properly admitted under the fourth replication, and therefore no injury resulted to defendant by the demurrer being overruled. The error in overruling -the demurrer to the fourth replication must work a reversal of the judgment of the circuit court.

There are -many other assignments of error, and as the cause must go back for another trial we shall notice those which seem to be important. -While the defendant was entitled to have'the claim for damages presented in writing within 60' days after the message was delivered for transmission, we think there is no doubt that the right is a limitation for the benefit of the defendant, is of its own creation, and may be waived by it, and the waiver may rest in parol.- — 27 Am. & Eng. Ency. Law (2d Ed.) p. 1049; Hill v. Western Union Tel. Co., 85 Ga. 425, 11 S. E. 874, 21 Am. St. Rep. 166; 1 Elliott on Ev. § 596. It may be that-an oral promise of a general agent or a manager of a telegraph company to look'into the claim it not a waiver of the condition requiring the claim to be in writing. This point, however, we do- not decide. — Massengale v. Western Union Tel. Co., 17 Mo. App. 257; Albers v. Western Union, 66 N. W. 1040, 98 Iowa, 51; Western Union v. Yopst, (Ind.) 11 N. E. 16. In the case at bar we think the evidence offered by the plaintiff on the subject of a waiver goes further than a mere promise to look into the matter, and makes the question of waiver vel non one to be determined by the jury.

Another insistence of the appellant is that the agent at Birmingham (Williams), to whom it is claimed by plaintiff the oral /claim for damages was presented, had no authority to waive presentation of the claim in writing. Williams testified he had no- authority to waive any of the rules or regulations on the back of the blanks, and that he had no authority to change any of the rules of the compafiy. But he also testified that he was at the time general manager of defendant’s local office at' Birmingham, and head' man there, and in charge of the company’s business there. Notwithstanding' the testimony of the agent that he was without authority, he was a general agent. It was his duty to transact generally'the telegraphic business at Birmingham. There is no evidence tending to show that- plaintiff, or her agent who was represénting her, knew of any'limitation imposed by the defendant upon the authority of Williams. If the jury should, find from the evidence there was a waiver of the claim, the defendant would he ho-und by his acts in this respect.— Western Union, Tel. Co., v. Cunningham, 99 Ala. 314, 14 South. 579; Syndicate Insurance Co. v. Catchings, 104 Ala. 176, 16 South. 46; Western Union Tel. Co. v. Blanchard, 68 Ga. 299, 45 Am. Rep. 480; Hill. v. Western Union, 85 Ga. 425, 11 S. E. 874, 21 Am. St. Rep. 166; 27 Am. & Eng. Ency. Law (2d Ed.) 1048, and cases collected in note 13. Prom, these considerations, it follows that the written instructions refused to the defendant were properly refused.

The plaintiff is the sendee of the message, and it is averred in the complaint that the sender, in sending it, acted as the agent of and 'for the benefit of the plaintiff. Thus by the averments the plaintiff is made a party to' the contract: Without- this relationship of party to the contract, the action could not be sustained by the plaintiff for the breach of it. — Western, Union Tel. Co. v. Adair, 115 Ala. 441, 22 South. 73; Manker v. Western Union, 137 Ala. 292, 34 South. 839. It was important, then, that the plaintiff sho-uld show the relationship. Manifestly for the purpose of showing the relationship referred to, counsel for the plaintiff asked her witness, C. B. Jones, the sender of the telegram, this question: “Did you deliver this message for the benefit -of Movie Heathcoat?” Clearly this question called for the conclusion of the witness, and the objection to it should have been sustained. — Minniece v. Jeter, 65 Ala. 222. Furthermore, the fact as to- whether the witness acted as agent for the plaintiff in sending the message cannot be proved in this way.

The question propounded to the plaintiff, “If you had received such a telegram between the 28th day of June and the 13th day of July, 1904, would you have been able to come to Birmingham- to see your brother, and could you have come?” calls for testimony that is relevant and material. It does not call for a conclusion of the witness, but a. shorthand -rendering of facts. Nor does the question call for “a mental operation.” So it was not subject to any ground of the objection made to it.

In this action, on proper proof, damages for mental pain and suffering are recoverable. — Western Union v. Ayers, 131 Ala. 391, 31 South. 78, 90 Am. St. Rep. 92; Western Union v. Haley, 143 Ala. 586, 39 South. 386; Western Union v. Merrill, 144 Ala. 618, 39 South. 121. It was competent for the plaintiff to testify that she suffered, mental pain and anguish. At least, the objections to the question calling for such evidence are not tenable. — Eckles v. Bates, 26 Ala. 655; Birmingham Ry. Co. v. Hale, 90 Ala. 8, 8 South. 142, 24 Am. St. Rep. 748.

It was necessary to show Fort’s authority to represent plaintiff in presenting the claim for damages. Therefore the court committed no error in allowing plaintiff to prove that she placed her claim for damages with an attorney, Mr. Fort. Fort subsequently testified that- he made an oral presentation of the claim.

The remaining assignments of error which relate to rulings of the court on the admissibility of evidence are disposed of and shown to be untenable by what we have said in respect of the question of waiver.

It is unnecessary to consider the assignment of error with respect to the refusal of the court to grant a new trial. For the errors pointed out, the. judgment of the circuit, court is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Haralson and Simpson, JJ., concur.